Linking to other websites is one of the most useful abilities of the Internet, indeed it was the underlying purpose of the World Wide Web. You can quickly hop from one site to another, chasing down the information you’re looking for. But do those links infringe copyright? Good question, let’s take a look.

“Like other aspects of media, the law relating to links from one website to another is not entirely settled. Generally, however, you should not have a problem if you simply post a link to another site, even if that site contains copyrighted material. In such a case, you are not publishing the material; you are simply pointing the way to someone else’s publication.”— Harvard University, Office of the General Counsel

General Links

The hyperlink

The basic link on the World Wide Web is known as a “hyperlink” and is coded like this:

“… linking cannot constitute direct infringement because the computer server of the linking web-site does not copy or otherwise process the content of the linked-to site”— Bernstein v. J.C. Penny, 1998

Text Links: Framing

Also known as iframes

Framing is a way for webmasters to make a section of someone else’s website appear on their website. It is a window (a frame) into the other site which, if presented with no border or explanation, can look like a seamless part of the website.

Framing used to be popular in the early days of the Web, but is rarely used now as it can impact search rankings, load time, layout, and is open to legal problems.

Including someone else’s content without authorization or disclosure can be a form of appropriation and copyright infringement.

Lower court found copyright infringement, appeals court did not, but no final ruling made

“in-line linking and framing may cause some computer users to believe they are viewing a single Google webpage, [but] the Copyright Act … does not protect a copyright holder against acts that cause consumer confusion.”— Perfect 10, Inc. v. Amazon.com, Inc., 2007

“in-line linking and framing may cause some computer users to believe they are viewing a single Google webpage, [but] the Copyright Act … does not protect a copyright holder against acts that cause consumer confusion.”— Perfect 10, Inc. v. Amazon.com, Inc., 2007, U.S. Ninth Circuit, the first appeals court to specifically address the copyright status of linking

Google does not … display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user’s computer screen.

Because Google’s computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any ‘material objects … in which a work is fixed … and from which the work can be perceived, reproduced, or otherwise communicated’ and thus cannot communicate a copy.

Instead of communicating a copy of the image, Google provides HTML instructions that direct a user’s browser to a website publisher’s computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy.

First, the HTML instructions are lines of text, not a photographic image.

Second, HTML instructions do not themselves cause infringing images to appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing image to appear on the user’s computer screen.

Google may facilitate the user’s access to infringing images. However, such assistance raised only contributory liability issues and does not constitute direct infringement of the copyright owner’s display rights. …

While in-line linking and framing may cause some computer users to believe they are viewing a single Google webpage, the Copyright Act … does not protect a copyright holder against [such] acts ….”

Breach of terms and conditions of a website

Just because a website owner states in the terms and conditions that links are not allowed, does not prevent links being added.

“It cannot be said that merely putting the terms and conditions [at the bottom of the home page] necessarily creates a contract with any one using the web site. [Plaintiff must show evidence of defendant’s] knowledge of them plus facts showing implied agreement to them.”— Ticketmaster Corp. v. Tickets.com, Inc., 2000.

“In the U.S., [a statement against linking which is not a signed agreement] does not bar an independent person from so linking without the owner’s permission.”— Wikipedia, Hyperlink

Trademark

“Trademark law does not permit Plaintiff to enjoin persons from linking to its homepage simply because it does not like the domain name of other content of the linking webpage.”— Ford Motor Company v. 2600 Enterprises, 2001

Links to illegal content

If copyright infringement is alleged, then a site owner can submit a DMCA Takedown Notice.

Section 512 of the DMCA shields site owners from a link to infringing content if they were unaware of the infringement and promptly remove the link upon notification, a so-called “DMCA Takedown Notice.”

“A service provider shall not be liable for monetary relief … for infringement of copyright by reason of … providing connections … if … the service provider responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement …”— DMCA §512

Case Law for Linking to Illegal Content

Intellectual Reserve v. Utah Lighthouse Ministry, 1999

Universal City Studios Inc v Reimerdes, 2000

Comcast of Illinois X LLC v. Hightech Elec. Inc., 2004

Deep Linking

There have been some issues when the hypertext links to, not the home page, but a sub-page within a site. This is called deep linking.

“On the World Wide Web, deep linking is making a hyperlink that points to a specific page or image on a website, instead of that website’s main or home page.”— Wikipedia, Deep Linking

“A sensible use of the immense wealth of information offered by the world wide web is practically impossible without drawing on the search engines and their hyperlink services (especially deep links).”— German Federal Supreme Court, 2003

“The customer is automatically transferred to the particular genuine webpage of the original author. There is no deception in what is happening. This is analogous to using a library’s card index to get reference to particular items, albeit faster and more efficiently.”— Ticketmaster Corp. v. Tickets.Com, Inc., 2000

Implied consent

The argument for hyperlinks

An argument could be made that, since the purpose of the World Wide Web is to link sites together, then, by choosing to be on the Web, every site owner has implicitly permitted others to link to their site.

The language of the Web is HTML (HyperText Markup Language) and the transmission protocol is HTTP (HyperText Transfer Protocol). In both cases, the first two letters stand for “hypertext” which is method of linking sites with text.

“Hypertext is the underlying concept defining the structure of the World Wide Web. … Hypertext is text displayed on a computer or other electronic device with references (hyperlinks) to other text that the reader can immediately access… ”— Wikipedia, Hypertext

“Hyperlink: an electronic link providing direct access from one distinctively marked place in a hypertext or hypermedia document to another in the same or a different document.”— Merriam-Webster, Hyperlink

“In general, if someone is making a website publicly available, others may freely link to it. That open linking is what makes the web a ‘web.’”— ChillingEffects.org